By Mark D. White

We have another call for papers from a conference in which I've proudly participated in the past (2014), this one on the subject of "Health Law as Private Law" presented by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. and to be held in late June 2023. From the conference description:

In the pursuit of public health and universal coverage, health law scholars have long focused on the role of government, and especially the federal government. Yet, whether it is health plan coverage of reproductive services or exclusions of gender affirming care, consumer medical debt or physician practice agreements, hospital mergers or private equity acquisitions, medical negligence waivers or informed consent violations – U.S. healthcare is also substantially governed by private relations, enforced by law. Is private law – the law circumscribing the relations between individuals and institutions – a pathology or a potential fix for the U.S. health care system? In what ways might private law be used as a catalyst for health care reform, separate from federal or state initiatives?

Since at least Kenneth Arrow’s Nobel Prize-winning work in economics, we have understood that there are clear market failures in health care, including agency problems, collective action problems, and information problems. Clarity on these problems can motivate reform. At the very least, understanding the limits of the private law approaches, including those imposed by legislation, regulation, and litigation – sheds light on the potential opportunities for structural reform.

This conference seeks to explore the intersection of private law and health care, especially regarding how private law can be a tool for achieving health care reform or addressing a significant health care or public health problem. Overall, this conference and subsequent book project seek to map out the challenges and opportunities of using private law and the tools it provides to govern and shape our health care system. Contributions that explore the interaction of government initiatives and regulatory reform with private law actions in the health care space are within the scope of this project as long as the contributions focus on the private law aspects.

More details, including suggested topics and submission details (one-page abstracts due October 17, 2022), can be found at the Petrie-Flom website.

By Mark D. White

Courtesy of Klaus Mathis, I'm pleased to present the call for papers for the tenth Law and Economics Conference at the University of Lucerne in Switzerland (in collaboration with the University of Notre Dame Law School), from March 17-18, 2023. This year's theme is one near and dear to this blogger's heart: Law and Economics of Justice: Efficiency, Reciprocity, Meritocracy. I participated in the conference in 2015 (on nudging) and it was one of my favorite conference experiences ever—I highly recommend it.

The call elaborates on the three subtopics:

Efficiency: Traditionally, the economic analysis of law was guided by the goal of efficiency. Economists usually define efficiency as Pareto efficiency or Kaldor-Hicks efficiency. Any change that puts one member of society in a better position without making somebody else worse off is a Pareto improvement. A change is a Kaldor-Hicks improvement if the gainers value their gains more than the losers their losses, whereby only hypothetical compensation is required. Efficiency as a normative goal is heavily contested. In particular, many authors see an antagonism between efficiency and distributive justice, which they qualify as the greatest socioeconomic goal conflict. Other authors view efficiency not as a goal itself but rather as an instrument to achieve social goals. In any case, the economic analysis of law has to differ between two steps: the positive analysis and the evaluation of the results by normative criteria.

Reciprocity: Economists have traditionally based their models on the self-interest hypothesis of the homo oeconomicus. In this model, an individual maximizes his own utility without showing altruistic or jealous behaviour. Behavioural economics calls into question the theorem of self-interest. Many people do, in fact, stray away from exclusively self-interested behaviour. There are also signs that the consideration of fairness and mutual benefits are important to bilateral negotiations and the functioning of markets. For example, in the ultimatum game, two players have to agree on the division of a fixed sum of money, with one player proposing the division and the other accepting or rejecting the division and with that the money for both players. Empirical evidence shows that offers with only a small share of the available sum are considered unfair and therefore rejected.

Meritocracy: The concept of meritocracy refers to a system, organization or society in which people are chosen and moved into positions of success, power and influence on the basis of their abilities and merits. This means that through hard work, an individual is able to climb the social ladder. Moreover, meritocracy directs the most talented people into the most functionally important positions and thereby enhances a society’s efficiency. However, the equalizing function of meritocracy has been criticized. Rather than reducing inequality, meritocracy is seen as the cause of racial, economic, and social inequality.

Submissions take the form of a short (1-2 pages) description of the topic and a short CV, and should be sent to Klaus Mathis ([email protected]) by September 30, 2022. Papers will be chosen by October 15, and draft papers are due February 28, 2023. (A conference volume is planned, and final papers will be expected soon after the conference.)

Accommodations are provided for the speakers courtesy of the conference, but they are responsible for arranging their own travel. (I remember the train ride from Zurich to Lucerne well—such breathtaking scenery!)

For complete details, please see the call for papers PDF here.

By Mark D. White

Forthcoming in Law and Society Review is David Gindis' review of Susanna Kim Ripken's book Corporate Personhood, both of which emphasize the complexity of the concept itself, wrapped up as it is in economics and ethics as well as law, political science, and sociology. From Gindis' abstract:

Susanna Ripken is an astute and fair-minded observer of today's corporate personality controversy. The premise of her impressive book is that the corporate personhood puzzle is as complicated as it is vexing because corporate personhood is inherently multidimensional, in a way that mirrors the fact that the corporation is at the same time an economic institution, a legal actor, a cultural artifact, and a political operator, whose actions can be morally praised or condemned. To produce a comprehensive picture of the corporation we need to weave together the different facets highlighted by economics, law, sociology, political science, philosophy, ethics, and other disciplines. So too must we proceed, Ripken persuasively argues, when dealing with corporate personhood. No single discipline is in a position to answer all the important questions corporate personhood raises. An interdisciplinary conversation is required.

The abstract for Ripken's book itself follows:

The topic of corporate personhood has captured the attention of many who are concerned about the increasing presence, power, and influence of corporations in modern society. Recent Supreme Court cases like Citizens United, Hobby Lobby, and Masterpiece Cakeshop - which solidified the free speech and religious liberty rights of corporations and their owners - have heightened the controversy over treating corporations as persons under the law. What does it mean to say that the corporation is a person, and why does it matter? In Corporate Personhood, Susanna Kim Ripken addresses these questions and highlights the complexity of the corporate personhood concept. Using a broad, interdisciplinary framework - incorporating law, economics, philosophy, sociology, psychology, organizational theory, political science, and linguistics - this highly original work explores the complex, multidimensional nature of corporate personhood and its implications for corporate rights and duties.

Readers may also be interested in a recent paper by David Gindis and Abraham Singer titled "The Corporate Baby in the Bathwater: Why Proposals to Abolish Corporate Personhood Are Misguided," forthcoming in Journal of Business Ethics:

The fear that business corporations have claimed unwarranted constitutional protections which have entrenched corporate power has produced a broad social movement demanding that constitutional rights be restricted to human beings and corporate personhood be abolished. We develop a critique of these proposals organized around the three salient rationales we identify in the accompanying narrative, which we argue reflect a narrow focus on large business corporations, a misunderstanding of the legal concept of personhood, and a failure to distinguish different kinds of constitutional rights and the reasons for assigning them. Corporate personhood and corporate constitutional rights are not problematic per se once these notions are decoupled from biological, metaphysical or moral considerations. The real challenge is that we need a principled way of thinking about the priority of human over corporate persons which does not reduce the efficacy of corporate institutions or harm liberal democracies.

By Mark D. White

In her article "The Supreme Court and the Pro-Business Paradox" in the Harvard Law Review, Elizabeth Pollman (Penn Law) reconsiders the Roberts Court's reputation as pro-business in light of the heterogeneity of interests across firms, as well as the conflicting interests of different parties within firms, both often neglected in both economic and legal commentary and analysis. (For earlier work on this general topic, see Jonathan H. Adler's edited volume Business and the Roberts Court.)

From her introduction:

This Comment makes two primary contributions. It first observes that cases from the recent Term reflect an important way in which the Roberts Court has earned its reputation: over the beginning of the twenty-first century, the Court has often expanded corporate rights while narrowing corporate liability or access to justice against corporate defendants. Part I of this Comment sets forth this argument, using Americans for Prosperity, Ford, and Nestlé as case studies to show how the Court uses ill-fitting conceptions or overbroad generalizations to empower corporations and limit their accountability.

This trend gives rise to a paradox that Part II subsequently explores: the “pro-business” Court is often at odds with internal activity in corporate law and governance. Quite remarkably, as the Roberts Court has expanded corporate rights and narrowed pathways to liability, many shareholders and stakeholders have become vocal participants, putting pressure on corporations to rein in the use of their rights, to mitigate risks generated by their externalities, and to take account of environmental, social, and governance (ESG) concerns. The Court’s expansion of corporate rights not only disserves many corporate participants and spurs them to action but also might fuel challenges to new disclosure rules about corporate political activity or other ESG-related concerns that investors and others seek for effective participation in corporate governance. Further, as the Court has downplayed or ignored corporate decisionmaking structures in its jurisprudence expanding rights and narrowing liability, by contrast, in the world of corporate law and governance, we see that board oversight, monitoring, and compliance functions have grown in importance. State corporate law cases have heightened attention on the board’s role in providing oversight to ensure legal compliance throughout the corporation’s operations and to mitigate litigation and reputational risks that can arise from corporate abuses around the world. Corporate compliance programs and voluntary ESG initiatives have proliferated amid widespread debate about the purpose of the corporation and a broadened role for stakeholders.

Looking at these diverging developments together suggests that, at least in some important circumstances, the Supreme Court’s approach may not capture the reality of modern business corporations, and it might not be what many shareholders and corporate participants actually want. It may instead create new tensions in corporations that are not fully and easily resolved through private ordering and that undermine the conceptual foundation for the existing arrangements in corporate law and governance. It may also ultimately serve only a limited set of business interests — not the great number of workers who are often framed as stakeholders on the other side of “pro-business” jurisprudence, nor the majority of public corporation shareholders, who are increasingly diversified through institutions that rely on external regulation to constrain corporations and minimize systematic risk. And so, in sum, corporations might bear little resemblance to the Court’s characterizations, and the business world, on the whole, might often be better off without “pro-business” jurisprudence that empowers corporations and erodes their external constraints.

By Mark D. White

In the latest issue of Economics and Philosophy (37/3, November 2021), Elizabeth Brake (Rice University) examines one of the most controversial topics in the ethical analysis of market behavior. In her article "Price Gouging and the Duty of Easy Rescue," Brake surveys the standard economic and ethical arguments for and against the practice, and suggests a novel ethical argument against it: that it violates our obligation to help people in emergency situations when it is of little cost to us. This position is usually associated with utilitarianism, thanks to Peter Singer, but can also be derived from various forms of deontology (although the positive nature of the duty may demand an extra step) as well as virtue ethics.

Brake makes a legal case as well as an ethical one, arguing that there is a basis in law for enforcement of a duty of easy rescue in such cases where price gouging arises. As she acknowledges, this is a more difficult case to make, because a legal duty normally implies a right that is violated, and a legal right to assistance is not generally recognized, however dire one's circumstances. She suggests several alternative ways of justifying a limited prohibition of price gouging based on legal duty of easy rescue, such as considering it as part of the regulation of market activity in the public interest, in which businesses are prohibited from harmful practices.

There is much more in Brake's paper than I can discuss here and it rewards a careful reading. For instance, she does address the economic benefits of price gouging, such as increasing supply of much-needed goods to disaster-stricken areas, and her ethical and legal analysis does allow for price increases to cover legitimate costs and risk. Her argument is against "pure" profiteering only, claiming that the seller's interest in higher profit does not justify holding disaster victim's interest in survival hostage to negotiations over price. Related to this, Brake also notes that market conditions are far from ideal in disasters, so we should not assume the same quality of consent, or use the same standards of coercion or duress, when evaluating transactions offered or made in such a context.

(For more of Brake's work on disaster ethics, see the dedicated page at her website.)

By Mark D. White

UCL Press has released a new book, Jeremy Bentham on Police, edited by Scott Jacques and Philip Schofield, which is available as a free download. Its chapters are written mostly from the viewpoint of criminology, but they would seem very relevant to the law-and-economics approach to policing as well, given Bentham's foundational influence over the field.

From the description at the publisher's website:

By Mark D. White

The October 2021 issue of Criminal Law and Philosophy (15/3) focuses on proportionality, a  principle of just punishment that is often neglected by economic models of criminal punishment that focus instead of cost-effective methods of deterrence, especially in light of costly enforcement measures. As special issue editors Douglas Husak and John Hasnas write in their introduction:

The following papers reveal the diversity of scholarly opinion about the principle of proportionality. Several are skeptical that the principle can be defended at all; others are reluctant to abandon the principle but point out many well-known and not-so-well-known difficulties in punishing according to proportionality; and a few make significant efforts to try to resolve some of these problems. We hope and believe that this set of papers represents major progress in understanding the role, if any, that judgments of proportionality should play in a just system of penal sentencing.

This is a fascinating set of papers by an astounding group of scholars, and will surely reward close reading—proportionate to effort, of course!

Douglas Husak, "Proportionality in Personal Life"

Larry Alexander, "Proportionality’s Function"

Mitchell N. Berman, "Proportionality, Constraint, and Culpability"

James Manwaring, "Proportionality’s Lower Bound" (OPEN ACCESS)

Adam J. Kolber, "The End of Liberty"

Youngjae Lee, "Mala Prohibita and Proportionality"

Jesper Ryberg, "Retributivism and the (Lack of) Justification of Proportionality"

Göran Duus-Otterström, "Do Offenders Deserve Proportionate Punishments?" (OPEN ACCESS)

Kimberly Kessler Ferzan, "Punishment, Proportionality, and Aggregation"

Heidi M. Hurd and Michael S. Moore, "The Ethical Implications of Proportioning Punishment to Deontological Desert"

By Mark D. White

The Law and Political Economy (LPE) Project recently launched a symposium that promises to examine cost-benefit analysis (CBA) under the critical lens of political science, law, and philosophy. The introductory post by legal scholar Frank Pasquale can be found here, and after surveying a number of the issues with CBA, summarizes the symposium's intent and future participants in its final paragraph:

The challenge to CBA is now clear. If it is to be a tool of policy evaluation worth supporting, we must embed it in political frameworks that make CBA just as prone to catalyzing regulation, as to derailing it. Moreover, the limits of quantification must be squarely addressed. Posts in this symposium demonstrate a way forward on both fronts, enriching CBA with both immanent and transcendent critiques of past OIRA missteps. We will be thrilled to welcome the symposiasts over the coming weeks: Beth Popp Berman, James Goodwin, Lisa Heinzerling, Zachary Liscow, Melissa Luttrell, Jorge Romano-Romero, Mark Silverman, Amy Sinden, and Karen Tani. Each has done important work in the field, and LPE Blog is honored to host their contributions.

The first full post, by legal scholar Lisa Heinzerling, discusses CBA in the context of the dual concerns of racial justice and climate change. She asks whether CBA can adequately appreciate the true benefits of action on these fronts, given its reliance on discounting of future benefits (which is highly sensitive to the specific discount rate chosen) and monetary valuation of benefits (which does not apply well to issues involving dignity and rights). She concludes by suggesting an alternative evaluative approach to these policy issues:

Discounting and monetary valuation are so central to the cost-benefit method that it is hard to imagine cost-benefit analysis without them. Happily, though, it is easy to imagine White House regulatory review without cost-benefit analysis. The vast majority of federal regulatory statutes do not require cost-benefit analysis. Many do not even allow it. Instead of evaluating major rules by asking whether they satisfy the test of formal cost-benefit analysis, the White House could ask whether the rules faithfully follow the relevant statutory framework and whether the agencies have rigorously analyzed the evidence in front of them. This simple reform would not only avoid the conundrums posed by cost-benefit analysis. It would also close the gap that has opened between the regulatory standards set by Congress and the cost-benefit metric that recent presidents have preferred.

This symposium is shaping up to be a valuable and fascinating survey of the numerous moral, legal, and political issues with cost-benefit analysis, and we'll likely be highlighting more contributions here as it continues.

Jonathan B. Wight

President Obama has an eloquence and slow burning passion that is apparent in this video staged at a prison to talk about institutional injustice.

It provides the clearest statement I’ve heard of how small injustices at the margin—at each level of the justice system—compound to create systematic institutional bias.

This is moving for me to hear, when my state of Virginia executed someone this week for heinous crimes. The anger and vitriol directed against this evil perpetrator is surely justifiable. But the penalty of death is an irreversible punishment, and shown to be meted out disproportionately to some groups compared to others.

Since 1973, there have been 153 cases of death row inmates being exonerated by new information. Even if you believe that the justice system were squeaky clean in terms of doling out similar punishments to all people, the death penalty allows for no errors of fact or theory. And humans are not immune to both blunders.

Absolute punishments seem better fit for Medieval Ages when God’s certainty seemed closer at hand.

Mark D. White

Today the Supreme Court of the United States—now, thanks to Justice Scalia's dissent in yesterday's King v Burwell dissent, "officially" known as SCOTUS—declared marriage to be a right for all, covering both same-sex and opposite-sex couples. In his majority opinion, Justice Kennedy affirms same-sex marriage to be a matter of rights and dignity; Chief Justice Roberts, in his dissent, regards it as a matter of policy best left to the voters.

I agree with Kennedy, as I explain at Psychology Today. For more details on the opinions themselves (found here), I recommend Orin Kerr's summary at The Volokh Conspiracy.